SC1938
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 31 OF 2019

ENFORCEMENT PURSUANT TO CONSTITUTION SECTION 57

BETWEEN
STANLEY POGA
Applicant

AND
MATTHEW DAMARU
First Respondent

AND
DR KAROL POPEI
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani:  Kandakasi DCJ, Shepherd & Berrigan JJ
2019:  29th August
2020:  29th April
	
CONSTITUTION – Criminal Law - Application to Supreme Court for enforcement of human rights pursuant to s.57 of Constitution - application to Supreme Court for review and acquittal after Supreme Court already determined appeal against conviction and sentence –whether criminal process tainted with fabricated medical evidence – judicial declarations sought pursuant to s.57 (1) and s.155(4) of Constitution – alleged breaches of ss.37 (1) and 37(3) of Constitution.

EVIDENCE -  fresh evidence – Supreme Court Act s.6(1) - evidence available but not secured at trial – principles in Pari v The State [1993] PNGLR 173 applied – “fresh evidence” rejected. 

SUPREME COURT – duty of applicant to compile application book in logical manner with index, pagination and tabs – role of Listings Judge to give directions to ensure content of application book is compliant with O.7 r.43 of Supreme Court Rules 2012 for appeal books but with appropriate modifications – dates for substantive hearing of formal appeals and applications not to be allocated by Listings Judge until compilation of appeal books and application books is confirmed as being compliant with Supreme Court Rules and with prior directions of Listings Judge.

Facts

The applicant was convicted by the National Court on a criminal charge of having caused grievous bodily harm to the first respondent. He was sentenced to imprisonment for 3 years. The applicant appealed to the Supreme Court against both conviction and sentence. The appeal was upheld in part.  The Supreme Court, after having rejected an application to adduce fresh evidence, found that the evidence of injury to the first respondent was not sufficient to support a conviction based on grievous bodily harm but that the evidence did support conviction on a lesser charge.  The Supreme Court accordingly convicted the applicant on the lesser charge of unlawful assault occasioning bodily harm and reduced the applicant’s sentence from 3 years to 2 years of imprisonment.

This is an application brought by the applicant pursuant to s.57 of the Constitution for enforcement of certain of his human rights.  The applicant contends that the fresh evidence he seeks to rely on establishes that the criminal proceedings against him at National Court and Supreme Court levels were tainted with fabricated medical evidence.  The applicant is in effect seeking judicial review by the Supreme Court of an appellate decision of a differently constituted Supreme Court to obtain his acquittal of the lesser assault charge of which he was found guilty by the Supreme Court.

Held

1.	The evidence on which the applicant relied post-determination by the Supreme Court of his appeal against conviction and sentence to now allege breach of his rights under ss.37(1) and 37(3) of the Constitution in this Application for enforcement of constitutional rights was not fresh evidence within the meaning of s.6(1) of the Supreme Court Act because it was evidence that pre-existed the applicant’s criminal trial and was available for production at the trial had the applicant exercised reasonable diligence to obtain that evidence: Pari v The State [1993] PNGLR 173 applied.
2.	Furthermore, the purported “fresh evidence” was of no evidentiary value and could not have affected the applicant’s conviction and sentence at trial or on appeal. 

3.	There was no breach of the applicant’s rights under ss.37(1) and 37(3) of the Constitution. 

4.	The Application for enforcement of Constitutional rights is dismissed for being without jurisdictional basis and an abuse of process.

Cases Cited:
Papua New Guinea Cases

Avia Aihi v The State (No. 1) [1981] PNGLR 81
SC Review No. 4 of 1990: Application by Wili Kili Goiya [1991] PNGLR 170
Powi v Southern Highlands Provincial Government (2006) SC844
TST Holdings Pty Ltd v Tom Pelis (1997) SC534
Merriam v The State [2000] PNGLR 10
Pari v The State [1993] PNGLR 173
Rawson Construction Ltd v Department of Works (2005) SC 777

Overseas  Cases

R v West Kent Quarter Sessions Appeal Committee. Ex parte Files [1951] 2 All E.R. 728

Counsel:

Mr S. Poga, Applicant in person
Mr C Karaiye, for First Respondent 
Mr G. Akia, for the Third Respondent

DECISION ON APPLICATION TO ENFORCE CONSTITUTIONAL RIGHTS

29th April, 2020

1.	BY THE COURT: This is an Application for Enforcement of Human Rights made by Stanley Poga (Mr Poga) pursuant to Section 57 of the Constitution (Application), after a criminal conviction and sentence that was affirmed in part by this Court. Mr Poga is seeking to be acquitted of his conviction by the Supreme Court on a charge of unlawful assault occasioning bodily harm. The ground he relies upon is that the criminal proceedings against him in the National Court and the Supreme Court were tainted with fabricated medical evidence.

2.	Initially Mr Poga was convicted by the National Court on 28 September 2017 and sentenced to imprisonment for 3 years.  That was on a charge under s.319 of the Criminal Code of having unlawfully caused grievous bodily harm to the first respondent.  The National Court citation for that case is The State v Stanley Poga CR No. 464 of 2016.  Mr Poga appealed against both his conviction and sentence under reference: Stanley Poga v The State SCRA No. 58 of 2018.  His appeal was heard on 1 May 2018.  The Supreme Court found there was insufficient evidence for the National Court to convict Mr Poga on the charge of assault causing grievous bodily harm.  However, the Court was satisfied that there was sufficient evidence to convict him on the lesser charge of unlawful assault occasioning bodily harm under s.340 of the Criminal Code. He was then sentenced by the Supreme Court to 2 years’ imprisonment on the lesser charge.  The Court took time spent by him in prison into account and suspended the balance of his sentence by 12 months.  Thereafter, the Court released him from prison on condition that he enter into a good behaviour bond for the duration of the remaining 12 months and suspended part of the sentence.

3.	After much intervening litigation, Mr Poga has now applied to this Court for a series of declarations and orders, some in the alternative, pursuant to s.57(1), s.57(3), s.155(2), s.155(4) and s.41 of the Constitution.  In the main, he is seeking to have his conviction by the Supreme Court on the charge of unlawful assault occasioning bodily harm quashed. He is arguing well after the event that his convictions were fraudulently obtained by the prosecution because of fabricated medical evidence. He claims therefore that he should be acquitted of the lesser assault charge recorded by this Court.

Background to this Human Rights Application 

4.	Mr Poga is a qualified lawyer.  Prior to his conviction by the National Court on 28 September 2017, he held the post of Senior Legal Officer and Deputy Director of the Police Legal Services Directorate. The first respondent is Detective Chief Superintendent Matthew Damaru, a commissioned police officer and the current Director of the National Fraud & Anti-Corruption Directorate of the Royal Papua New Guinea Constabulary (DCS Damaru) based at Konedobu, National Capital District.

5.	The criminal assault charges against Mr Poga arose from an incident which occurred at DCS Damaru’s office at Konedobu on 30 April 2015. The primary judge in National Court proceedings CR No. 464 of 2016 made findings to the effect that, on 30 April 2015 DCS Damaru was seated at his workstation at about 9.30 am when Mr Poga, in an angry mood, suddenly entered DCS Damaru’s office without knocking and confronted DCS Damaru.  That was in response to a confidential minute to which Mr Poga was not privy to, but of which he had become aware. DCS Damaru had recommended in his confidential minute to certain high-ranking officers against Mr Poga’s transfer to the National Fraud & Anti-Corruption Directorate. Upon confronting DCS Damaru in his office, Mr Poga picked up a plastic correspondence tray that was on the desk and used it to assault DCS Damaru. The tray impacted against DCS Damaru’s forehead, causing an injury with substantial bleeding.

6.	DCS Damaru’s forehead injury was treated and sutured later that same morning, 30 April 2015, by senior specialist surgeon Dr Karol Popeiat St Mary’s Medical Centre at 4-Mile, National Capital District (Dr Popei). Dr Popei’s medical report dated 1 May 2015, adduced in evidence by the prosecution in CR No. 464 of 2016, described the injury sustained by DCS Damaru when first observed and treated by Dr Popei at St Mary’s Medical Centre on 30 April 2015 in these terms: 

“Clinically the wound was still bleeding and pressure had to be applied to control it. The wound was about six centimetres in length with ragged edges and deep, consistent with being hit with a hard object.  The wound involved the underlying facial muscle but not the bone.

Treatment:

The wound was then explored, debrided, and sutured under local anaesthetic.  The cut muscle was sutured with chromic catgut (x 4 stitches) and the skin wound was sutured with nylon suture (x 14 stitches), a total of 18 stitches were required.  He was also given antibiotic and anti-inflammatory injections, and supplied with oral antibiotic and analgesia to take at home.”

7.	Dr Popei attended the National Court trial as a witness for the prosecution and produced his medical report of 1 May 2015 in evidence, which he augmented with oral evidence. Dr Popei was not called on by the prosecution or Mr Poga at the trial to produce his clinical notes or any further documentary evidence of his treatment of the wound to DCS Damaru’s forehead on 31 April 2015.

8.	The transcript of the National Court proceedings in CR No. 464 of 2016 on 28 September 2017 contains the following statement by the primary judge:

“HIS HONOUR:  The report by [Dr Popei] is that when he saw the complainant on 30 April 2015, he had a deep wound on his forehead that was still bleeding.  That is his evidence.  During cross-examination he mentioned that if the wound was not attended to and bleeding was not stopped, it would have endangered or caused some serious injury to the complainant.  It would have endangered his life.  That is the only evidence we have.  If we do not agree with that evidence, what else will we rely on?  That is the evidence by the doctor.  He is not related to the complainant, not related to the accused and I have no reason to have any reservations about his evidence.  So I find that the wound in question was a grievous bodily harm.

9.	Based on Dr Popei’s medical report, photographic and other evidence tendered at trial, the primary Judge convicted Mr Poga on 28 September 2017 of the offence of having committed unlawful grievous bodily harm to DCS Damaru contrary to s.319 of the Criminal Code and sentenced him to 3 years’ imprisonment.

10.	On 16 October 2017 Mr Poga filed his appeal SCRA 58 of 2017.

11.	In early December 2017 Mr Poga, when serving his sentence at Bomana Correctional Institution, laid a complaint to Police Internal Affairs.  He alleged that he had been wrongly convicted and sentenced by the National Court on 28 September 2017.  He claimed DCS Damaru and Dr Popei had conspired with each other to fabricate Dr Popei’s medical report dated 1 May 2015 so as to give the allegedly erroneous impression to the Court that the injury to DCS Damaru’s forehead was far more serious than it really was. His complaint to Police Internal Affairs was based at that stage on the applicant’s own observations of DCS Damaru and Dr Popei when they had given evidence under cross-examination at his trial in the National Court on 28 September 2017.  Mr Poga states in paragraph 11 of his affidavit sworn on 29 March 2019 in support of his Application in this proceeding SCA No. 31 of 2019 (reproduced below without editorial correction) that:

“I could tell from their demeanor that something was not right and that they were lying.  If Mr Damaru did in fact received 18 stitches as he claimed then it should be visible on his face and the police photographs in the Police File did not show stitches too.  And if Dr Popei did in fact stitched Mr Damaru, he would or ought to have known when he removed those stitches.”

12.	Police Internal Affairs through Chief Sergeant Mugua Kend of the Internal Affairs Directorate at Police Headquarters, Konedobu acted on Mr Poga’s complaint. On 6 December 2017, officers from Police Internal Affairs executed a search warrant at St Mary’s Medical Centre at Boroko and seized Dr Popei’s handwritten clinical notes in connection with his treatment of the wound DCS Damaru sustained on his forehead.  Dr Popei’s clinical notes covered the period 30 April 2015 to 8 May 2015.

13.	Armed with Dr Popei’s clinical notes, Chief Sergeant Kend then applied to the Waigani District Court on 15 December 2017 for warrants for the arrest of DCS Damaru and Dr Popei.  That was on charges that, the two of them had conspired with each other to pervert the course of justice, that they had each assisted the other with the fabrication of Dr Popei’s medical report dated 1 May 2015 and that they had committed perjury when giving evidence at Mr Poga’s National Court trial. The Waigani District Court issued the warrants on 15 December 2017.

14.	Dr Popei’s clinical notes are annexure “C1”and “C2”to the affidavit of Chief Sergeant Kend sworn by him on 11 December 2017 in support of his application to the District Court at Waigani in proceeding AW No. 1267-1269 of 2017for the issuance of warrants for the arrest of DCS Damaru and Dr Popei. More legible copies of Dr Popei’s same clinical notes are attached to annexure “KP1” of Dr Popei’s own affidavit sworn 14 June 2018 and filed in related Waigani District Court proceeding COM No. 1267-1269 of 2017.

15.	Extracts from Dr Popei’s clinical notes include the following handwritten text: 

“Date:  30/04/15
…
Procedure: Deep laceration on forehead was explored, debrided and sutured under L/A – laceration involved muscle but not the bone.  The ragged edge was debrided then sutured with 3/0 chromic and skin wound closed with 4/0 nylon for COD tomorrow.” 

	“Date:  01/05/2015
	Rev  10.44 am
		wound clean    stitches x 14	}   18 total
				 + 4 stitches   }
		And requires Med. Report for Police”

16.	The application for the issue of warrants for the arrest of DCS Damaru and Dr Popei was founded on Chief Sergeant Kend’s allegation in his affidavit that there was a discrepancy between Dr Popei’s initial clinical notes made on 30 April 2015 and the medical report made by Dr Popei the next day, on 1 May 2015.  Chief Sergeant Kend asserted that Dr Popei’s clinical notes made on 30 April 2015 when first written by Dr Popei indicated that DCS Damaru received only 4 inner stitches and 3 outer stitches totalling 7 stitches in all for his head injury but that those clinical notes had then been altered to show that a total of 18 stitches were administered.  It was contended by Chief Sergeant Kend that Dr Popei’s medical report of 1 May 2017, admitted into evidence at Mr Poga’s trial, was falsified in collusion with DCS Damaru to increase the number of sutures from 7 stitches to 18 stitches. That was in order to correspondingly increase the evidence of severity of Mr Poga’s assault on DCS Damaru so that, if convicted at trial, Mr Poga would receive a longer sentence.

17.	Dr Popei was arrested on 22 December 2017 by Chief Sergeant Kend and charged with 5 criminal offences, namely, 3 counts of perjury, 1 count of conspiracy with DCS Damaru to pervert the course of justice and 1 count of fabrication of evidence. After being charged, Dr Popei was then released on bail.

18.	On 20 March 2018, the District Court at Waigani struck out all charges against Dr Popei for want of prosecution. Mr Poga asserts, this was because of police politics and because of pressure which was said to have been brought to bear on Chief Sergeant Kend by a superior officer not to pursue the prosecution of Dr Popei because to do so, could be seen as contempt of court in view of Mr Poga’s pending Supreme Court appeal.

19.	On 30 April 2018, Mr Poga’s appeal to the Supreme Court came on for hearing.  At that hearing Mr Poga applied to adduce fresh evidence and for leave to tender Dr Popei’s clinical notes which had been seized by the police when executing the search warrant issued on 5 December 2015.  The Court unanimously dismissed the application as unmeritorious.  The Court reasoned that Dr Popei’s clinical notes were in existence and were available prior to Mr Poga’s trial. They were therefore not fresh evidence which had surfaced for the first time after the trial in the National Court. Instead, Dr Popei’s clinical notes were evidence that was available and could have been subpoenaed before trial. Furthermore, the Court was not satisfied that there was fabrication of evidence as to the number of stitches with which DCS Damaru’s wound had been sutured by Dr Popei.

20.	The State conceded at the hearing of the appeal that, on the strength of the evidence, the learned trial judge erred in entering conviction for grievous bodily harm. However the State also submitted that it was open to the trial judge to convict the appellant of the alternative charge of unlawful assault occasioning bodily harm under s. 340 of the Criminal Code.  Mr Poga did not dispute this and conceded “that a conviction for the alternative charge ought to have been made on the strength of the evidence before the Court”.  The Supreme Court accordingly quashed Mr Poga’s conviction for grievous bodily harm and substituted a conviction for the lesser charge of unlawful assault occasioning bodily harm under s.340 of the Criminal Code. Mr Poga was then sentenced to 2 years’ imprisonment on that lesser charge on the basis that the victim was physically wounded, his wound sutured leaving a scar upon healing, a plastic tray was used as a weapon to inflict the wound, and the case involved the assault of a senior police officer by a junior one. The Court took into account the time Mr Poga had alreadyserved and suspended the remaining 12 months of his sentence, placed him on a good behaviour bond on his own recognizance for that same period and had him discharged from prison.

21.	In the ordinary course of events this Court’s determination of Mr Poga’s appeal in SCRA No. 58 of 2017would have exhausted his constitutional right to have his conviction at National Court level reviewed by a higher court.  However, more litigation was to follow.

22.	On 15 May 2019, two weeks after delivery of the Supreme Court’s decision, DCS Damaru filed an application with the Waigani District Court in proceeding COM No. 1267-1269 of 2017seeking the dismissal of the warrants for his arrest.  Annexed to DCS Damaru’s affidavit in support of his application, was a copy of Dr Popei’s bill from St Mary’s Medical Centre dated 30 April 2015 addressed to DCS Damaru, together with a quotation for minor surgery to DCS Damaru’s forehead “for exploration and suture under L/A” and a quote for K30 for provision of a roll of sutures. 

23.	The description column in Dr Popei’s bill contained these words: “Chromic 2 suture”, for which a charge of K30 was made. The total of the bill for Dr Popei’s treatment of DCS Damaru for his forehead injury on 30 April 2015 was K492.This included Dr Popei’s fees of K290 for the consultation and surgical procedure he carried out, with the remainder of the bill giving the itemized costs for an injection, medications and suture material, the latter being described as “Chromic 2 suture”. 

24.	Mr Poga interpreted the reference in Dr Popei’s bill to “Chromic 2 suture” as meaning this was clear evidence that Dr Popei had inserted only 2 chromic stitches when suturing the laceration to DCS Damaru’s forehead and not the 4 chromic stiches and 14 nylon stitches totalling 18 stitches referred to in Dr Popei’s medical report of 1 May 2015 and which report had been in evidence before both the National and the Supreme Courts.

25.	Mr Poga responded to DCS Damaru’s affidavit in COM No. 1267-1269 of 2017 by swearing and filing an affidavit in answer on 28 May 2018.  The salient portions of Mr Poga’s affidavit in answer are set out at length below, without editorial correction:

“2.	I laid a complaint of fabrication of evidence against the Respondent and his doctor after being convicted of assaulting him after the National Court trial on the 28th of September, 2017 whilst I was a Chief Inspector and Senior Legal Officer of Police.

  3.	I alleged that a Doctor Karol POPEI of the St Mary’s Medical Centre who treated the Respondent wrote a medical report for the said Mr DAMARU saying that the victim received eighteen (18) stitches, fourteen (14) nylon stitches on the outer skin and four (4) chromic stitches on the inner, was not telling the truth and that the injury was minor and that he received no stitches at all.

   4.	I too have reason to believe that the forensic photographs of the victim by photographer Senior Constable Moses PAIN on the 4th of May 2015 after the treatment on the 30th of April 2015 did not show stitches thus Dr Popei may have fabricated evidence to increase the severity of the injuries and as a consequent the severity of the crime as well.  And so I laid a complaint in the Police Internal Affairs Division to investigate.
…
    10.	But [DCS Damaru] cannot escape: in fact he has further incriminated himself, in page 20 of Annexure “MD1”of the respondent’s affidavit in support of his application to dismiss the arrest warrants against him, he produced his Medical Bill dated 30th of April, 2015 (date of assault incident in his office). In the medical bills it showed that he was:
	“Sutured with only 2 chromic stitches”.
	The big questions now are:
i.	Where are the other 2 chromic stitches? There are supposed to be 4 chromic stitches per Medical Report of 1st of May, 2018 [sic].
	ii.	And what happened to the 14 nylon stitches? They are NOT shown on the bills but are on the Medical Report of 1st of May, 2018 [sic].

    11.	The National Court relied on the Medical Report of 1st May,2015, Dr Popei’s evidence and his own evidence of 4 chromic stitches and 14 nylon stitches totaling 18 stitches to convict and to sentence me on the 28 of September, 2017.  The Respondent is now producing fresh fabricated evidence to court thus perjured himself”. 

26.	Mr Poga’s affidavit in answer to DCS Damaru’s application to the Waigani District Court was supported by an affidavit from Chief Sergeant Kend in similar terms.

27.	Dr Popei then came to the assistance of DCS Damaru by swearing an affidavit on 4 June 2018 which was filed in Waigani District Court proceeding COM No. 1267-1269 of 2017 the same day. Annexed to Dr Popei’s affidavit is a statement dated, 31 May 2018 which sets out Dr Popei’s explanation of the medical procedure which he performed on DCS Damaru on 30 April 2015. We set out hereunder the whole of the text of that statement, verified by Dr Popei’s affidavit, as it is relevant to the misunderstanding, intentional or otherwise, of Mr Poga and Senior Sergeant Kend regarding the number and type of stitches which, Dr Popei used when suturing DCS Damaru’s forehead injury and which misunderstanding by Mr Poga has generated so much post-appeal litigation, culminating in this application now before us: 

“I, Dr. Karol Kanawi Popei, senior specialist surgeon and consultant at St Mary’s Medical Centre attended to Mathew Damaru on 30th April 2015 when he was brought to the Clinic with the bleeding wound on his forehead.  He was noted to be still bleeding and the wound (laceration) was noted to be deep so he [was] taken to the treatment room and pressure was applied to the wound to stop the bleeding.  He was also noted to have high blood pressure of 180/94 and a pulse rate of 80/minute which confirmed that he was in pain.

The wound was initially estimated to be about six (6) centimetres in length with ragged edges, and this was explored under local anaesthetic (L/A) with adrenaline to control the blood oozing.  The laceration was noted to involve the underlying facial muscle (torn muscle) but not the bone. The torn part of facial muscle, and the ragged edges and ends of the laceration were then debrided in preparation for the closure of the wound.  The torn part of the facial muscle was then sutured (stitched) with 3/0 chromic catgut whichis a fine absorbable suture for stitching the inside part of the wound.  After debridement of the ragged edges and ends of the laceration to smoothen them out, the enlarged and extended skin wound was then sutured (stitched) with 4/0 nylon which is a fine nonabsorbable suture for stitching the skin especially of the face and neck tominimize disfigurement orscarring.  Dressing was then applied to the sutured wound, and he was given lincomycin and voltaren injections, and supplied with oral amoxil and volataren as per the clinical notes to take at home.

He was reviewed the next day, 1st. May 2015, and the wound was noted to be clean and dry.  He then asked for the number of stitches used, and requested for a medical report.  The skin stitches were then counted in the treatment room to be 14 stitches, and 1 added the 4 chromic stiches that I used to repair the torn muscle, so a total of 18 stitches all together were required.

Note:
The chief aim of a surgeon in treating all facial wounds is to restore the appearance and function of the part, and to reduce disfigurement to the minimum, and this is exactly what I have done for Mathew Damaru.  I have restored the function of his muscle of facial expression and have kept the scarring or disfigurement to the minimum by using fine sutures, but usually we don’t count the number of stitches at operations.” 

28.	DCS Damaru’s application to dismiss the arrest warrants was heard by the Waigani District Court on 7 June 2018.  The presiding Magistrate delivered his ruling on 26 June 2018, granting DCS Damaru’s application to dismiss those arrest warrants. His Worship was satisfied with Dr Popei’s explanation that, DCS Damaru’s forehead injury had been sutured with 4 x 3/0 chromic stitches and 14 x 4/0 nylon stitches totalling 18 stitches in all.  

29.	On 28 June 2018, Senior Sergeant Kend filed fresh applications in the Waigani District Court for the arrest of DCS Damaru and Dr Popei.  This was only two days after the presiding magistrate in proceedingCOM No. 1267-1269 of 2017 had revoked the earlier arrest warrants on 26 June 2018.  Mr Poga deposes in paragraph 33 of his last-mentioned affidavit to the effect that His Worship refused to hear those fresh applications, whereupon the Clerk of Court informed Senior Sergeant Kend that an appeal to the National Court should be filed if the revocation of the earlier arrest warrants against DCS Damaru and Dr Popei was to be pursued. We note for the record that no such appeal to the National Court was filed by Senior Sergeant Kend.

30.	What then happened was that Mr Poga, being aggrieved by the decision of the Waigani District Court on 26 June 2018, commenced his own fresh proceeding OS (HR) No. 20 of 2018 filed in the National Court on 15 August 2018.  This time, he named Robert Ali, Chief Superintendent of Police and Director of Internal Affairs as first defendant, Gari Baki, Commissioner of Police as second defendant and the State as third defendant.   This proceeding was a human rights application brought by the applicant under s.57 of the Constitution whereby the applicant claimed breaches of his constitutional right to a fair trial because of alleged fabricated medical evidence. 

31.	The relief sought by Mr Poga in National Court proceeding OS (HR) No. 20 of 2018 was a series of judicial declarations, primarily declarations that the applicant’s convictions of assault by the National Court and the Supreme Court were tainted with fraudulently obtained fabricated evidence and that his convictions were therefore an abuse of process or harsh and oppressive and were in breach of ss. 37(1), 57(3) and/or 41 of the Constitution.  Mr Poga also sought in that proceeding, orders under ss. 23(2) and 155(4) of the Constitution to compel the Commissioner of Police to have DCS Damaru arrested for fabrication of evidence and perjury, without naming DCS Damaru as a party to that proceeding. 

32.	On 2 October 2018, Mr Poga filed an Amended Originating Summons in OS (HR) No. 20 of 2018 seeking a further order that he be reinstated to his substantive rank as Chief Inspector of Police and his position as Senior Legal Officer of Police.  He cited ss. 23(2), 57(3) and/or 155(4) of the Constitution and/or the inherent jurisdiction of the National Court as the legal foundation for his seeking that relief.

33.	Mr Poga’s application in National Court proceeding OS (HR) No. 20 of 2018 was heard on 8 October 2018.  On 13 February 2019 the primary Judge delivered his decision dismissing the proceeding. The Court found the proceeding was an abuse of process because the issues of fabricated medical evidence and fresh evidence had already been dealt with by the Supreme Court in SCRA No. 58 of 2018. 

34.	Several days later, the Secretary of the PNG Law Society notified Mr Poga by letter dated 5 February 2019 that, the Society had been advised by the Lawyers Statutory Committee that on 7 November 2018 the Committee had found Mr Poga guilty of improper conduct as a lawyer.  It also advised that, one of the penalties imposed on Mr Poga was his suspension from practice as a lawyer for a period of 12 months. The Law Society further informed that it had revoked Mr Poga’s restricted practicing certificate as a lawyer for the duration of his 12 months suspension. This penalty arose from complaints of professional misconduct by Mr Poga which had been lodged with the PNG Law Society by DCS Damaru and by Assistant Police Commissioner Victor Isouve.  The complaints were directly related to Mr Poga’s assault on DCS Damaru on 30 April 2015. 

35.	Not persuaded by the National Court’s ruling of abuse of process in proceeding OS (HR) No. 20 of 2018, Mr Poga commenced this present proceeding SCA No. 31 of 2019 on 20 March 2019 seeking declarations and orders similar to those that were sought by him in his earlier human rights application in OS (HR) No. 20 of 2018.

Relief sought by the applicant in this review proceeding SCA No. 31 of 2019

36.	The relief which Mr Poga is seeking per his prayer for relief can be summarised as follows:

(1).	Judicial declarations pursuant to Sections 57(1) and 57(3) of the Constitution that the applicant’s criminal prosecution for assault in the National Court and his appeal proceedings in the Supreme Court were tainted with fabricated medical evidence ab initio in breach of:
a)	Sections 37(1) and 37(3) of the Constitution;
b)	Section 41 of the Constitution.
(2)	In the alternative, a judicial declaration pursuant to Sections 57(1), 57(3) and 155(2)(c) of the Constitution that the applicant’s criminal prosecution for assault in the National Court and his appeal proceedings in the Supreme Court were tainted with fabricated medical evidence ab initio in breach of Sections 37(1) and 37(3) of the Constitution.
(3)	An order pursuant to Sections 57(1) and 57(3) and/or 155(2) or 155(4) of the Constitution that the applicant’s conviction for unlawful assault occasioning bodily harm by the Supreme Court, being tainted with fabricated medical evidence ab initio, be quashed and the applicant acquitted. 

Grounds for the Relief sought by the applicant

37.	Order 6 Rule 3(d) of the Supreme Court Rules 2012 as consolidated to 2013 requires that applications to enforce constitutional rights under Constitution s.57 are to be in Form 6 of the First Schedule to the Rules.Unfortunately that form does not require a pleading of the grounds relied upon by an applicant.  The present Application conforms to the format prescribed in Form 6.  However, the grounds can be ascertained from section 3 of the Application and also from the affidavit material Mr Poga has filed in support of his Application. Those grounds appear to be twofold. Mr Poga is aggrieved because he contends that:

(1)	the Supreme Court erred when it refused his application to adduce what he terms “fresh evidence” of fraudulently manufactured medical evidence and collusion between Dr Popei and DCS Damaru, the “fresh evidence” being Dr Popei’s clinical notes of his treatment of DCS Damaru’s forehead injuries which were obtained by police as a result of the search warrant executed at St Mary’s Medical Centre  on 6 December 2017, after the applicant’s conviction and sentence by the National Court on 28 September 2017; and

(2)	the bill dated 30 April 2015,that was issued by St Mary’s Medical Centre for Dr Popei’s treatment of DCS Damaru’s forehead injury which, the applicant only became aware of after the conclusion of his Supreme Court appeal, and which the applicant asserts is further “fresh evidence” of fraudulently manufactured evidence by Dr Popei in collusion with DCS Damaru,

and that therefore, the whole of the criminal process against him which resulted in his conviction on appeal by the Supreme Court of the lesser charge of unlawful assault,was tainted with fabricated medical evidence right from the start of the National Court case against him.  Mr Poga is accordingly seeking by this Application the Supreme Court’s review of the whole of that criminal process under s.57 of the Constitution and to have him acquitted of his conviction and sentence. 

Issue

38.	We consider that the main issue raised by this Application is whether the Supreme Court has the jurisdiction to revisit by way of judicial review under s.57 of the Constitution a matter which has already been concluded by the Supreme Court on appeal.

39.	If the Supreme Court has no such jurisdiction, then all relief sought by the applicant must be refused.

Jurisdiction of the Supreme Court to revisit a matter already concluded by the Supreme Court on appeal

40.	The Application before the Court is in effect an application for a differently constituted Supreme Court to review and reverse the appellate decision of the Supreme Court made in SCRA No. 58 of 2018 whereby Mr Poga was convicted of unlawful assault occasioning bodily harm in place of the more serious conviction against him in National Court proceeding CR No. 464 of 2016 of causing grievous bodily harm to DCS Damaru.  

41.	Mr Poga conceded at the outset of his submissions in this Application that his right of appeal to the Supreme Court against his conviction for assault by the National Court was exhausted when the Supreme Court delivered its decision in SCRA No. 58 of 2018 on 1 May 2018.  However he submitted that the Supreme Court’s conviction and sentencing of him could still be reviewed by the Supreme Court under s.57(1) of the Constitution on his assertion that fresh or new evidence has come to light after the final determination of his appeal and his application for fresh evidence by the Supreme Court. He contended that the fresh or new evidence showed that evidence adduced at trial and on appeal had been fabricated in the form of a conspiracy between Dr. Popei and DCS Damaru.  He therefore submitted that, s.57(1) of the Constitution empowers the Supreme Court with an original jurisdiction to review what would otherwise have been a final appellate decision of the Supreme Court. This he submits, is possible if this Court can be satisfied that the prosecution’s evidence against him in the criminal proceedings in the National Court and in the Supreme Court on appeal was fraudulent.

42.	Quite apart from the applicant attempting to persuade this Court that it should invoke its original jurisdiction under s.57(1) of the Constitution, Mr Poga is also seeking an order for his acquittal by reliance on s.155(4) of the Constitution.

43.	We find there are at least two fundamental flaws in Mr Poga’s arguments.  Firstly, his argument proceeds on the assumption that the Supreme Court is constitutionally possessed of an original jurisdiction by operation of s.57(1) of the Constitution, augmented by the range of orders the Supreme Court can make under s.57(3) of the Constitution, to review a final decision of a differently constituted Supreme Court if, during the course of the criminal process, there has been a breach of his constitutionally guaranteed rights and freedoms.  Here,Mr Pogais alleging breaches of his rights to:

(1)	full protection of the law under s.37(1) Constitution;
(2)	a fair hearing under s. 37(3) Constitution; and
(3)	protection from proscribed acts under s.41 Constitution.

44.	Sections 57(1) and 57(3) of the Constitution relevantly provide:

“57.	Enforcement of guaranteed rights and freedoms

(1)	A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court …either on its own initiative or on application by any person who has an interest in its protection and enforcement …
…
(3)	A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).”
	
45.	Section 155(2)(c) of the Constitution,which is also relied on by Mr Poga as one of the sources of jurisdiction for the Supreme Court in this instance to order his acquittal,states: 

“155.  The National Judicial System
 …
(2)	The Supreme Court –
(a)	is the final court of appeal; and
(b)	has an inherent power to review all judicial acts of the National Court, and
(c)	has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.”

46.	English common law has from time immemorial long held that a right of appeal from an inferior court or tribunal to a higher court or authority is a right which can only be conferred by statute.  As was observed by Lord Goddard C.J. in R v West Kent Quarter Sessions Appeal Committee. Ex parte Files [1951] 2 All E.R. 728 at p.730:

“It is most elementary that no appeal from a court lies to any other court unless there is a statutory provision which gives a right of appeal.  The decision of every court is final if it has jurisdiction, unless an appeal is given by statute.”

47.	This statement was expressly approved by Kapi J (as he then was) in Avia Aihi v The State (No. 1) [1981] PNGLR 81 where His Honour, referring to Papua New Guinea, observed: 

“Under our legal system the position is no different.  Statutes give a right of appeal to a higher court.  See Village Courts Act, … District Courts Act and the Supreme Court Act.  The right of appeal under these statutes is to be read subject to the right of appeal under s.37(15) of the Constitution.” 

48.	Section 37(15) of the Constitutionprovides: 

“37(15)	Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.”
	
49.	Mr Poga does not dispute that he has no further right of appeal to the Supreme Court.  However he argues that s.155(2)(c) of the Constitution, when applied in conjunction with s.57(1) and s.155(4) of the Constitution, confers jurisdiction on the Supreme Court to review the Supreme Court’s appellate decision regarding his conviction by the National Court. 

50.	The wording of s.155(2) is clear and unambiguous.  It endows the Supreme Court with jurisdiction to review judicial acts of the National Court, not judicial acts of the Supreme Court.  Accordingly, we reject the proposition that s.155(2)(c) is a source of jurisdiction for the Supreme Court to review the decision of a differently constituted Supreme Court.  That being the case, Mr Poga must look to other sources of jurisdiction in the Constitution or any other law if the Supreme Court is to have any such power of review of its own decisions. In this context we note Mr Poga is also placing reliance on s.155(4) of the Constitution:

51.	Section 155(4) of the Constitution provides:

“155(4)	Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”	

52.	This provision has been the subject of many decisions of the National and Supreme Courts.  One of the earliest of these decisions is the Supreme Courts’ decision in SC Review No. 4 of 1990: Application by Wili Kili Goiya [1991] PNGLR 170 (Kapi DCJ, Los J, Sheehan J).  There the Court unanimously held that where an appeal to the Supreme Court has been determined, s.155(4) of the Constitution does not permit a differently constituted Supreme Court to review that determination. 

53.	The facts in that case were that the applicant was convicted by the National Court for wilful murder and sentenced to life imprisonment. The applicant appealed to the Supreme Court against both conviction and sentence.  The Supreme Court dismissed that part of the appeal which was against conviction but allowed the appeal in respect of sentence and substituted a lesser sentence of 20 years in hard labour.  The applicant then applied to the Supreme Court to review its own decision to uphold his conviction but reduce his sentence.  The applicant relied on s.155(2)(a) and s.155(4) of the Constitution.

54.	Kapi DCJ (as he then was),with whom the other two members of the Court, Los and Sheehan JJ agreed, succinctly explained the operation of s.155(2)(a) in Goiya’s case as follows:

“A convicted person has a right to appeal to the Supreme Court on any ground set out under s.22 of the [Supreme Court] Act. This [the applicant] has done and the Supreme Court has given its decision.  The grounds which he raises now on the application are matters which could have been raised on appeal.  In particular, there is provision for calling fresh evidence unders.6 and other evidence under s.8 of the Supreme Court Act.  Once a person has exercised his right in accordance with s.37(15) of the Constitution and s.22 of the Supreme Court Act, he has no further right to have his conviction and sentence reviewed.  No further right is given under the Act to have the decision of the Supreme Court reviewed by any other court or tribunal.  Section 155(2)(a) puts the matter beyond doubt.  That is where the buck stops as far as the judicial system is concerned.”

55.	His Honour, having eliminated the argument that s.155(2)(a) could allow a further right of appeal against the appellate decision of the Supreme Court in that case, then considered whether s.155(4) gave jurisdiction to the Supreme Court to review the appellate decision of the Supreme Court. His Honour, referring to s.155(4), stated:

“This provision cannot support the proposition that a Supreme Court can review a decision of a differently constituted Supreme Court.  If that were so, it could also be said that the National Court could review a decision of another National Court decision in the same manner.  I would reject such an interpretation.  
…
Section 155(4) of the Constitution has been considered in a different context.  In Avia Aihi v The State [supra], the question there was whether, having lost a statutory right of appeal, a convicted person could restore such right under the words “such other orders as are necessary to do justice in the circumstances of a particular case.”  The Court held that this provision does not give such a power.  This was followed in a case dealing with a different situation but similar in nature: SCR No. 2 of 1981; Re s.19(1)(f) of the Criminal Code [1982] PNGLR 150.
In summary, these cases establish that the first limb of s.155(4) gives the Supreme Court and the National Court power to make orders in the nature of prerogative writs with the second limb power to make other orders which are remedial, adjectival as well as procedural in nature.
In so far as power is given to make these orders in reviewing exercise of power by the courts, this supervisory jurisdiction is exercised over inferior courts.  That is the nature of prerogative writs.  It cannot be used by the same court to review a decision of the same level of court.  If the constitutional framers intended this, they would have said so expressly.”
[emphasis added]

56.	Later, in Powi v Southern Highlands Provincial Government (2006) SC844, their Honours Jalina, Gavara-Nanu and Kandakasi JJ(the first and the latter as they then were) reviewed almost all the cases on point and indicated the proper parameters of the Supreme Court’s power under s. 155(4) of the Constitution in this way:

“There is … no room for argument in our view that, regardless of however the Supreme Court is constituted, there is no power in the Supreme Court to review the decision of another Supreme Court except as may be provided for by any other law, such as the Supreme Court Act itself.

From the foregoing, we are of the view that there are about five important features or attributes of s.155(4) of the Constitution.  These are as follows:

1.	The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as a necessary to do justice in the particular circumstances of a case” before the Court; 

2.	Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution; 

3.	Where remedies are already provided for under other law, the provision does not apply;

4.	The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number it is constituted, except as may be provided for by any law; and

5.	A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”
[emphasis added]

57.	It is now well settled law that the Supreme Court has no jurisdiction or power to review a decision of another Supreme Court.  The principles enunciated by Kapi DCJ (as he then was) in Goiya’s case have been affirmed in many subsequent cases: see for example the decision in TST Holdings Pty Ltd v Tom Pelis (1997) SC534.  On the basis of all authorities on point and our own considered view of the meaning and effect of the provisions of ss. 57(1) and 57(2), 155(2)(c) and 155(4) of the Constitution, this Court is without any jurisdiction to further or again review its own earlier decision regardless of the nature of the proceedings in which that decision was arrived at.  

Application of the law on s.155 (4) of the Constitution to the facts

58.	We now turn to the second flaw in Mr Poga’s arguments. In his aid, Mr. Poga tried to bring into application the decision of this Court in the case of Merriam v The State [2000] PNGLR 10.  There Mr Merriam had been convicted by the National Court on two counts of sodomy and sentenced to 5 years imprisonment.  On appeal, the Supreme Court quashed the conviction on the first count and reduced the sentence on the second count from 5 years to 3 years. After Mr Merriam had been discharged from prison but was still on parole, the principal witness who had given evidence against him in the National Court came forward and gave post-appeal evidence in the Supreme Court that the testimony which he had given against Mr Merriam at trial was untrue.  The witness deposed that he had been threatened and induced by others to give false evidence to secure Mr Merriam’s conviction at trial.

59.	The Supreme Court granted leave for the fresh evidence to be adduced pursuant to s.155 (4) of the Constitution and s.6 (1) of the Supreme Court Act.  It went on to uphold the application for review under s.155 (2) of the Constitution on the basis that the fresh evidence established that the verdict was “unsafe and unsatisfactory” for the purposes of s.23 of the Supreme Court Act.  In so doing, the Court applied the principles outlined in Pari v The State[1993] PNGLR 173 and observed as follows:

“Ellis J, in Pari v The State (supra), adopted the following statement by the 	Australian High Court in Craig v R (1933) 49 CLR 429 at 439:

	“A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence.  It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable man to be affected.  Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced.”
								[emphasis added].

60.	The Court in Merriam’s case carefully assessed the quality and character of the fresh evidence of perjury as follows: 

“The witness gave evidence [of his perjury] in a very direct and straightforward manner.  His evidence was not impeached in examination by the State.  The State led no evidence in rebuttal to suggest any reason why the evidence and the reasons given for it cannot be acceptable.  The circumstances subsequent to and leading to the volunteering of this evidence cannot be said to be such as to render this evidence unreliable and not worthy of acceptance.  It is of course the most vitally relevant evidence, the very opposite of that which the witness gave in the National Court upon the basis of which the applicant was convicted.  It is in our view cogent and plausible and of such a character that it renders the verdict unsafe and unsatisfactory.  We would therefore quash the verdict and set aside the sentence.”

61.	We therefore ask: What then is the nature and character of the “fresh evidence” Mr Poga in the instant case now seeks to rely on for the purpose of conferring on the Supreme Court jurisdiction under s.57(1) and s.155(4) of the Constitution to review the National Court’s conviction and sentencing of him as modified by the Supreme Court on appeal? 

62.	The statutory source of the Supreme Court’s power to admit fresh evidence in an appeal from the National Court is s. 6(1) of the Supreme Court Act Chapter 37.  Section 6 of that Act provides:

  “6.	Appeal to be by way of rehearing
(1)	An appeal to the Supreme Court shall be by way of rehearing on the evidence givenin the court the decision of which is appealed against, subject to the right of the Supreme Court –
(a)	to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b)	to draw inferences of fact.
(2)	For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.”			

63.	Division 20 of Order 7 of the Supreme Court Rules 2012, Rules 52 to 59 set out the procedure for applications to the Supreme Court to receive fresh evidence on appeal where that fresh evidence is additional to evidence adduced in the National Court.

64.	As held in Pari v The State(supra), and as approved by the Supreme Court in Merriam v The State (supra), Rawson Construction Ltd v Department of Works (2005) SC 777 and other decisions, there are two basic requirements which must be satisfied if fresh evidence is to be admitted on appeal, quoting from the headnote:

“Firstly, there must be fresh evidence within the meaning of s.6(1)(a) of the Supreme Court Act Ch 37, which means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time.
Secondly, the court must be satisfied that the justice of the case warrants admission of the evidence.”
[emphasis added]

65.	Mr Poga in the present case is seeking his acquittal by in effect asking the Supreme Court through a new and separate proceeding to now overturn this Court’s earlier interlocutory order in the appeal proceeding which refused his application to adduce “fresh evidence” at that point and to now allow him to additionally adduce further “fresh evidence” which he says he became aware of after his appeal to the Supreme Court was concluded.  It is also important to note that he brought a separate and new human rights application under OS (HR) No. 20 of 2018 seeking orders or relief essentially similar to what he now seeks in his Application before us. The National Court dismissed his human rights application.  He has not filed an appeal or a review against that decision. He has instead filed fresh and separate proceedings.

66.	The alleged “fresh evidence” Mr Poga relies on for the purposes of his present application comprises two documents, namely St Mary’s Medical Centre’s bill dated 30 April 2015 to DCS Damaru for Dr Popei’s medical treatment of him that day and a quotation signed by Dr Popei for items mentioned in that bill.  Mr Poga claims he did not become aware of these two documents until after his conviction by the Supreme Court on 1 May 2018.  Copies of these documents were attached to the affidavit of DCS Damaru sworn on 14 May 2018 and filed by him in the Waigani District Court in support of his application to that Court in proceeding COM No. 1267-1269 of 2017. Mr Poga became aware of DCS Damaru’s application and affidavit in support soon after those documents had been filed in the Waigani District Court.

67.	In our view, the so-called “fresh evidence” so persistently relied on by Mr Poga in this Application is not fresh evidence at all. Rather it is documentary evidence that was in existence and was available to be adduced in evidence by him in his defence at his trial in the National Court.  Mr Poga is an experienced police lawyer in his own right. He had every opportunity to obtain production at his National Court trial of Dr Popei’s clinical notes, the bill rendered by St Mary’s Medical Centre to DCS Damaru, Dr Popei’s handwritten quotation for items included in the bill and any other records held by Dr Popei or the Clinic in connection with Dr Popei’s treatment of the injury inflicted to DCS Damaru’s forehead on 30 April 2015.  Mr Poga failed to issue summonses for that documentation to be produced in his defence at his trial or take such other steps to secure and adduce this evidence at the trial.  He only has himself to blame for that omission. The fresh evidence process is not available to cover for negligence or failures of parties to obtain pre-existing evidence at trial but strictly speaking relates only to evidence which the parties could not by the exercise of reasonable care and due diligence have come to secure and adduce at trial.
 
68.	But even if Mr Poga had issued the appropriate production summonses prior to his trial and had the evidence in question been adduced at his trial,in our considered opinion the so-called “fresh evidence” does not constitute evidence of any fabrication, perjury, fraud and or collusion by Dr Popei and DCS Damaru or by anybody else for that matter. The Supreme Court would have been entitled in our estimation to come to the same conclusion had it reviewed those medical records at Mr Poga’s appeal hearing.  Our reasons for this finding are set out below. 

69.	Mr Poga deposes in paragraphs 27, 28 and 29 of his affidavit sworn on 28 February 2019 in support of his present Application:

“27.	On the 15thof May, 2018, immediately after the charges of Dr Popei were struck out, and the hearing of my appeal ended and seeing that my application to adduce fresh evidence in the Supreme Court were declared as unmeritorious and dismissed, Mr Damaru filed an application to dismiss his warrants of arrest in the Waigani Committal Court on the basis of abuse of process and malicious prosecution.   …
 28.	On the 15th of May, 2018, he also filed his affidavit in support of the above application.  In the affidavit, he annexed his Medical Bills of the 30th of April, 2015 (date of assault incident).  In the Medical Bills is showed that he was only stitched with only 2 chromic stitches and nothing about the 18 stitches as claimed in his Medical Report of 1st of May, 2015.  That evidence was not obtained by the Police and so is fresh evidence.  …
	29.	The National Court relied on the Medical Report of 1st May, 2015, Dr Popei’s evidence and his own evidence of 4 chromic stitches and 14 nylon stitches totaling 18 stitches to convict and to sentence me on the 28 of September, 2017  Mr Damaru has now produced fresh fabricated evidence to court thus further perjured himself in the District Court.”

70.	Against this is the very different explanation given by Dr Popei (reproduced at paragraph 27 of this decision) to His Worship Mr Cosmos Bidar in DCS Damaru’s application to the Waigani District Court in COM No. 1267 -1269 which formed the basis for discharging the warrant for arrest of DCS Damaru. His Worship accepted that the references in Dr Popei’s clinical notes of 31 April 2015 to “3/0 chromic” stitches and “4/0” nylon” stitches, repeated in Dr Popei’s medical report of 1 May 2015, were not references to the number of stitches but to the type and sizes of stitches.   

71.	The reason for the revocation by the Waigani District Court of the arrest warrant against DCS Damaru is confirmed by Mr Poga’s own affidavit sworn on 20 March 2019 in support of his current Application in SCA No. 31 of 2019 where, at paragraph 32, he deposes:

“32.	On the 26th of June, 2018, His Worship, Mr Cosmar Bidar of the Waigani Committal Court ruled that the initial evidence from the clinical notes regarding the 3/0 chromic catgut stitches and the 4/0 nylon stitches were types and sizes of the suture (stitch) material and not the number of stitches thus he concluded that the police evidence was based on speculation and recalled Mr Damaru’s warrants of arrest and revoked them.  However His Worship did not address the issue of the fresh evidence of the 2 chromic stitches introduced to court by Mr Damaru himself.  The court simply allowed the Police to continue their investigations.”  

72.	Mr Poga’s reference to “fresh evidence of the 2 chromic stitches” is a reference to the fact, as we have previously noted in this decision, that the bill dated 30 April 2015 issued by St Mary’s Medical Centre and addressed to DCS Damaru for Dr Popei’s treatment of DCS Damaru’s forehead injury included an incidental charge of K30 said to have been for “Chromic 2 suture”.  The total of the bill came to K492.  Mr Poga has interpreted this as meaning that Dr Popei only inserted 2 chromic stitches when he sutured the injury to DCS Damaru’s forehead and that this in itself is supposedly incontrovertible evidence of perjury, fraud and collusion by Dr Popei with DCS Damaru.  Mr Poga asserts this because Dr Popei’s medical report dated the next day, 1 May 2015 and adduced in evidence at his trial in the National Court stated that the “cut muscle [on DCS Damaru’s forehead] was sutured with chromic catgut (x 4 stitches) and the skin wound was sutured with nylon suture (x 14 stitches), a total of 18 stitches were required.”, which he says contradicts the reference in St Mary Medical Centre’s bill to “2 chromic stitches” and is proof that, Dr Popei’s medical report and clinical notes were fraudulently manufactured in collusion with DCS Damaru.

73.	We consider that the fact that Dr Popei’s bill dated 30 April 2015 addressed to DCS Damaru used the wording “Chromic 2 suture” is not material evidence, even on the balance of probabilities, that Dr Popei only inserted 2 stitches to bind the laceration, contrary to the applicant’s latest allegation in this regard. Dr Popei’s bill does not state the number of stitches inserted.  It only identifies a disbursement of K30 for the supply for “Chromic 2 suture”.  The bill was obviously generated by a computer billing program. Be that as it may, the bill was not in Dr Popei’s own handwriting and it cannot in our view be construed in any way as evidence of the number, type or size of stitches which were administered by Dr Popei as part of his treatment of the wound.  The reference in the bill to “Chromic 2 suture” was simply an electronically generated computer description of a disbursement, which bill we infer was created by accounts staff at St Mary’s Medical Centre, not by Dr Popei personally. This is corroborated by the fact that, the handwritten quotation signed by Dr Popei which accompanied the bill gives a unit price of “K30/roll” for sutures, again without any description of the number or type of sutures used.  The bill does not in any way purport to be a medical reportand nor can it be.

74.	In para.14 of DCS Damaru’s affidavit sworn on 14 May 2018 in Waigani District Court proceeding COM No. 126701269 of 2017, DCS Damaru deposed to the effect that after the criminal charges laid by Senior Sergeant Kend against Dr Popei had been struck out by that Court for want of prosecution on 20 March 2018, Dr Popei subsequently lodged a letter of complaint dated 29 April 2018 with ACP Crimes, Police Headquarters, Konedobu, NCD.  Dr Popei’s letter of complaint was in connection with his arrest and unlawful detention by police which had arisen from Sergeant Kend’s misinterpretation of Dr Popei’s clinical notes and medical report of 1 May 2015.

75.	Dr Popei’s letter of 29 April 2018 to ACP Crimes is annexure “MD16” to DCS Damaru’s affidavit, which forms part of the Application Book in this review Application.  We set out hereunder the relevant parts of Dr Popei’s letter (without editorial correction): 

          “Re: Unlawful Arrest on me by Chief Sergeant Mugua Kend on 18th December2017:

In reference to the above matter, on the morning of 18th December 2017 at around 10.00am, chief sergeant Mugua Kend came to St Mary’s Medical Centre with his armed policemen to arrest me.  I was surprised when he showed me the Warrant for Arrest signed by magistrate, Mr Cosmas Bidar on 15th December 2017.  He then told me that he was going to take me to Koki Police Station for questioning.  I then asked him to wait until I finished seeing my patients but he said no you will have to come with us now.  So in in front of my patients and staffs I left the Clinic like a wanted criminal under armed police escort.
Prior to the arrest, about 3 or 4 weeks earlier the same chief sergeant Mugua Kend was at the Clinic with a Search Warrant for medical records on Mathew Damaru.  When he came to me from the administrator’s office with copies of the Clinic file on Mathew Damaru, I told him that what is written on the patient’s Clinic record are for doctors only and you may end up misinterpreting it.  He then left with copies of the medical file, not knowing that he was going to come back later with a Warrant to arrest me.
I was taken to the Internal Affairs Office at Koko for questioning and while on the way I was interrogated by the armed policeman, saying that I was being dishonest with myself, the company I work for, and to my profession.  He told me that they had interviewed 3 doctors and they all agreed that what I had written in the medical report on the number of stitches on Mathew Damaru was wrong.  He told me that there were supposed to be 7 stitches only and not 18 stitches as stated in the medical report.   I then told him that they must have been interviewing some bush doctors.
…
During the interview the same topic on thenumber of stitches was brought up again and I was shown what they were referring to as 7 stitches in the medical file record from the Clinic, and not 18 stitches on my medical report.  What the sergeant was referring to in the medical file was the 3/0 chromic catgut and the 4/0 nylon that I used to stitch up the wound and recorded in the file.  So I told him that this is exactly what I warned you about, that you will misinterpret what is in the patient’s medical file.  I then explained to him that, 3/0 chromic is the size and type of suture that we use for stitching the inside part of the wound and it is not the number stitches, and the 4/0 nylon is the size and type of suture that we use for stitching the skin and it is not the number of stitches.  I told him that he has misinformed himself and has mislead others to believe him. 
…
Dr Karol Kanawi Popei
[signature] “

76.	Mr Poga’s Application contains two affidavits from two other doctors. These were obtained by Chief Sergeant Kend in support of the oft-repeated contention of himself and Mr Pogathat DCS Damaru and Dr Popei had conspired together to fabricate Dr Popei’s medical records of his treatment of the injury inflicted by Mr Pogaon DCS Damaru.   

77.	The first of those affidavits is from Dr Niure Badia of Gerehu General Hospital, Gerehu, NCD and was sworn on 11 December 2017. The second affidavit is from Dr Gladwin Mai of International SOS based at the Exxon plant site at Papa Lealea, NCD and was sworn on 26 March 2018.  Both doctors give their opinions in their respective affidavits regarding Dr Popei’s medical report of 1 May 2015 and state to the effect that 18 stitches were unnecessary for suturing a wound 6 cm in length.  Dr Badia stated in his affidavit that he would have sutured the wound with only 3 stitches on the outer skin of the laceration.  Dr Mai said that if he had had to treat the wound, he would have used seri-strips (without describing what they are), alternatively he would have used a sub-cuticular stitch which is one continuous stich under the skin using one of the absorbable 4/0 chromic catgut sutures used by Dr Popei.

78.	Dr Mai confirmed in his affidavit that reference to sutures 4/0 and 3/0 is a reference to the size of the sutures used, which are smaller than suture size 2/0.   It is not a reference to the number of sutures used.

79.	Dr Badi’s affidavit concludes in paragraphs 8 and 9 with assertions which are verging on being scandalous when he gives his opinion that:

“8.	What is proclaimed in the fabricated medical notes, sworn affidavit and oral evidence of both Dr Popei and Mr Damaru in court are clearly designed to increase the severity of the injuries and make it life threatening thus mislead the court when medically it was not possible on the forehead in similar circumstances.
 9.	Dr Popei has breached medical ethics and the law in providing a fabricated medical report, fabricated sworn affidavit and even gave oral evidence under oath during trial which were totally false for court purposes.”

There is nothing in the Application in this instance to suggest that Dr Badi was present at the applicant’s trial in the National Court on 28 September 2017.  Dr Badi’s hearsay evidence in paragraph 9, couched as if it were findings of fact of a court, is tantamount to professional misconduct not only by Dr Badi but also on the part of any lawyer who may have drafted that affidavit for Dr Badi to sign.

80.	It is also important to observe that neither Dr Badi nor Dr Mai state in their respective affidavits that they conducted any physical examination of the site of the wound to DCS Damaru’s forehead. They only inspected copies of Dr Popei’s handwritten clinical notes and Dr Popei’s medical report of 1 May 2015.  We note in the absence of any evidence to the contrary that any number of medical doctors could treat a wound in a number of different ways and their approaches may vary from each other. Furthermore, in fairness, Mr. Poga should have called these doctors to give their evidence and be cross-examined at his trial but were not. Hence we are of the view that Dr Badi and Dr Mai’s opinion evidence carries little or no weight and is of no probative value.  

81.	Still further, Mr Poga is seriously mistaken when he asserts in his affidavit in support of this Application that police photographs taken of DCS Damaru’s forehead injury soon after the event showed no evidence of sutures.  In paragraph 11 of his affidavit, he states:

“If Mr Damaru did in fact received 18 stitches as he claimed then it should be visible on his face and the police photographs in the Police File did not show stitches too.”

82.	We reject that statement. There was ample photographic evidence adduced at the applicant’s trial by the prosecution of the suturing which Dr Popei carried out to DCS Damaru’s forehead injury.  That photographic evidence was also before the Supreme Court during the hearing of Mr Poga’s appeal and the same evidence is before us.

83.	The photographic evidence comprises at least 3 close-up colour photographs of the injured portion of DCS Damaru’s sutured forehead.  Those 3 photographs are attached as pages marked 21U, 21V and 21W forming part of Annexure “A” to Mr Poga’s affidavit in support of this Application.

84.	The primary judge at the applicant’s National Court trial in CR No. 464 of 2016 and the judges presiding in the Supreme Court at the applicant’s appeal in SCRA No. 58 of 2018 had only to look at the photographic evidence of the forehead injury inflicted by Mr Poga on DCS Damaru on 31 April 2015 to assess for themselves the extent of the laceration and stitches needed as part of a proper treatment of that injury. In particular, the colour photograph marked as page 21U gives a very clear image of not only the laceration itself, obviously about 6 centimetres in length, consistent with Dr Popei’s medical report, but also a series of multiple stitches, with at least 4 stitches apparent at the lower end of the laceration and a succession of fine stitches securing the remainder of the laceration.

85.	Given the weight of the evidence against the position taken by Mr Poga regarding Dr Popei’s clinical notes seized by the police by search warrant after the National Court trial, we find that the position taken by Mr Poga is bordering on absurdity.

86.	Returning to the decision in Merriam’s case, we note the core facts of the case before us are completely different from those in Merriam’s case. Here, the alleged “fresh evidence” sought to be adduced by Mr Poga is not fresh evidence at all, but documentary evidence which pre-existed the trial and was available for production at the trial had Mr Poga exercised reasonable care or due diligence to obtain that evidence.  But even then, that would not have assisted Mr Poga in terms of having him exonerated in the way he is arguing before this Court.  The purported fresh evidence does not establish that there was any fabrication of the evidence at trial. Also, Mr Poga does not dispute the fact of him assaulting DCS Damaru, a matter he once again conceded on this Application, as he did previously before the Supreme Court at the hearing of his appeal.

87.	We accordingly find that as Mr Poga’s conviction for assault by the National Court and the Supreme Court was not tainted by any fabricated evidence, or that the outcome of the criminal proceedings could reasonably have been affected by the alleged “fresh evidence” now relied on by Mr Poga, his rights under ss.37(1) and 37(3) of the Constitution were not breached.  Further, we find that his Application is without merit, misconceived and without any jurisdictional foundation. We would therefore have his Application dismissed.

88.	Finally, we note that, s.41 of the Constitution was mentioned in Mr. Poga’s Application.  However this provision was not fully argued before us. We therefore decline to give any consideration to s. 41 and its application to this case.

Conclusion

89.	In conclusion, we find for the reasons given that the Supreme Court has no jurisdiction in the circumstances of this case to revisit by way of judicial review the appellate decision of the Supreme Court in SCRA No. 58 of 2018.  We also find on the evidence presented in this Application that there was no perjury, conspiracy or fraudulent manufacture of evidence or collusion by DCS Damaru and Dr Popei in the evidence adduced by the prosecution at Mr Poga’s National Court trial.  As with the outcome of Mr Poga’s human rights application in National Court proceeding OS(HR) No. 20 of 2018, this Application was similarly an abuse of process and must be dismissed.

90.	As to the issue of costs, the normal principle that costs follow the event shall apply.  Mr Poga is to pay the costs of the first respondent and the third respondents on a party-party basis, such costs to be taxed if not agreed.

Final Observation – format and content of Application Book

91.	Before proceeding to make the final orders, we make one further observation in connection with this Application.

92.	The task of this Court in preparing this judgment was made unnecessarily difficult and prolonged. This was due to the failure of Mr Poga to observe the most basic courtesy to assist the Court by provision of an index to the Application Book, the pagination of the Application Book and the insertion in the Application Book of tabs to separate one document from the next.  Apart from Mr Poga’s Application in Form 6 and his affidavit in support, the rest of the Application Book was a motley compilation of copies of sundry affidavits, each with their own page numbering, confusing annexure notes and other materials.  These were copies of sundry affidavits filed in Mr Poga’s human rights application in National Court proceeding OS(HR) No. 20 of 2018 and in the various search warrant and arrest proceedings instituted by Chief Sergeant Magua Kend at the behest of Mr Poga in Waigani District Court proceedings AW No. 1267-1269 and COM No. 1267 -1269 of 2017. Those affidavits in turn annexed Court transcripts and materials in the National Court’s trial of Mr Poga in CR No. 464 of 2016 and Mr Poga’s resulting appeal to the Supreme Court in SCRA No. 58 of 2017 from his conviction and sentence at trial.

93.	The hotchpotch manner in which the Application Book in this instance was compiled, with its consequential inconvenience to the Court, could have been avoided had the Listings Judge given directions to Mr Poga, an experienced police lawyer representing himself, to prepare and file his Application Book in compliance with the format required by Order 7 Rule 43 of the Supreme Court Rules 2012 for appeal books, but with appropriate modification of those requirements. The Listings Judge should then have been vigilant not to allocate a hearing date for the Application until the Application Book was compliant with the Listing Judge’s directions. This appears not to be happening in some of the appeals with their appeal books and other proceedings with their respective books.  We suggest Listings Judges in all future cases observe what is suggested here to ensure the Court’s time at the hearing and judgment process is not unnecessarily wasted.

94.	But irrespective of directions made by the Listings Judge, Mr Poga, being an experienced police lawyer and as a party, had a duty to the Court to have ensured that his Application Book was compiled in a logical manner.  He should not have applied on the last page of his Application under Order 11 Rule 10 of the Supreme Court Rules for a waiver of his compliance with the Rules relating to preparation of application/review books – and then file an Application Book which was largely a confusing admixture of documents extracted from numerous other related court proceedings.

ORDER 

95.	Based on the foregoing reasons we make the following orders:

(1)	The Application to Enforce Constitutional Rights is dismissed for being an abuse of process.

(2)	The applicant shall pay the costs of the first respondent and the third respondent on a party-party basis, such costs to be taxed if not agreed.

________________________________________________________________
Applicant: 		In Person
Morgens Lawyers:	 Lawyers for the First Respondent 
Solicitor-General:	Lawyer for the Third Respondent